Scotland Focus

March 2018

DWF Scotland News

We are delighted to confirm that at the recent Scott & Co Legal Awards the Scottish Counter Fraud team won the Innovation in Practice award for the second year in a row. This award is recognition of great team work across DWF in tracking the migration of fraudsters north of the border and disrupting fraud in Scotland.

Insurance Times Claims Excellence Awards

Counter Fraud Scotland have also been shortlisted for a national award for "Fraud Prevention Solution of the Year" at the Insurance Times Claims Excellence Awards. The entry showcases our pre-litigation outsource product and our innovative Disrupt to Progress forums.

Legislation Update

There have been some developments following the welcomed Stage 2 amendment from Margaret Mitchell MSP to ring fence future losses from the calculation of the success fee element in DBAs.

Daniel Johnson MSP has lodged amendments at Stage 3 seeking to overturn those amendments. Sheriff Principal Taylor has also written to Annabelle Ewing MSP urging the Justice Committee to reconsider including future losses in the calculation of the solicitors fee. We are strongly opposed to this and are working with the ABI, contacting MSPs and involving the press to try to prevent this amendment being passed.

Next Steps

It was anticipated that the Stage 3 Debate may have taken place this month. This is looking unlikely now and looks more like it will be after the Easter recess, towards the end of April.

Some recent Supreme Court judgements have provided some well-needed clarity on the subject, with the Scottish Government to provide further certainty in the form of the Prescription (Scotland) Bill. The Bill was introduced in the Scottish Parliament on 8 February 2018 with Stage 1 scheduled for May 2018.

Damages (Scotland) Bill

With the Civil Liability Bill published last week down south it remains to be see whether this will prompt the Scottish Government to bring forward the introduction of the Damages (Scotland) Bill. This Bill is set to amend the law on the personal injury discount rate and enable the courts to impose periodical payment orders when making an award of damages in respect of personal injury.

Professional Indemnity Scotland

On 28 February the Supreme Court handed down judgment in this case, considering the circumstances in which a solicitor for one party to a transaction may owe a duty of care and be liable for negligent misstatement to the other party. In unanimously allowing the appeal, they have reaffirmed the primacy of the test: was the reliance of the other party reasonable and was it foreseeable?

Disease

The recently decided case of Docherty & Ors v Secretary of State for Business Innovation and Skills & Anr [2018] CSOH 25has raised a number of issues relating to the applicable legislation for the assessment of damages where defenders are sued on a joint and several basis but their alleged negligent acts occur on opposite sides of the border. In this particular case the executor and twenty-three relatives of the deceased proceeded with their claims against the first defender only, maintaining their primary position that the deceased was employed in Scotland, the negligent exposure to asbestos dust occurred in Scotland and therefore the applicable law was the law of Scotland. This most recent decision of Lord Tyre discusses the applicable law where the wrongful act occurs in Scotland but where the injury or lossoccurs at a later date in England.

His Lordship made the distinction between the place where the wrongful act occurred and the place where the harmful event occurred, stating: -

"..injury is an essential element of an actionable wrong, and since injury obviously cannot take place until after the breach of duty has occurred, the place of the harmful event (or locus delicti) is where the injury takes place and not, if different, where the antecedent negligent act or omission occurred."

Impact: Lord Tyre held that the pursuer's claims fell to be determined under English law and their case under the Damages (Scotland) Act 2011 was irrelevant. The Fatal Accidents Act 1976 is far more restrictive than the Scottish legislation. Consequently, all claims from the second to twenty-fourth pursuers were dismissed. Only the first pursuer's claim will be allowed to proceed under the Fatal Accidents Act 1976.

Comment: The significance of this decision is far reaching, and raises a number of issues to be considered by insurers when dealing with claims from pursuers exposed to asbestos in Scotland, but where the injury takes place in England. In fatal claims, not only will the category of entitled pursuers be restricted in terms of the Fatal Accidents Act 1976, but also the overall value of the claims will be significantly reduced. Further, the implications of the decision must be considered in the context of pleural plaques claims from English claimants exposed in Scotland. It remains to be seen whether the pursuers' will seek to appeal this decision.

Abuse Claims

Scottish Child Abuse Inquiry

The inquiry continues with Phase 2 and the hearings to examine evidence relating to residential child care establishments run by Catholic Orders. Further hearings specifically relating to Sisters of Nazareth are due to commence on 24 April 2018.

Details of those who have given evidence and transcripts of the hearings can be viewed here.

News and updates can be viewed via this link as the inquiry progresses.

Contact

For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate, Professional Support Lawyer Insurance on 0141 228 8132 or Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196

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A consultation was launched this month along with a draft Member's Bill from Labour MSP Claire Baker which proposes to amend the law of culpable homicide in Scotland. The draft Bill's stated aim is to…

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.